Wiretapping Lies

Ryan Singel at the always-excellent Threat Level blog debunks the latest lies about wiretapping laws getting Americans killed in Iraq. The story claims that it took soldiers in Iraq 10 hours to get the necessary legal permission to wiretap the cell phones of terrorists who had kidnapped American soldiers.

As Singel points out, there are a bunch of problems with this story. In the first place, the military doesn’t need any court approval to do wiretaps physically outside of the United States, so if they had taps on cell phone towers in Iraq (and as Singel points out, if we don’t have wiretaps on the Iraqi cell phone network, “we all deserve tax refunds”), no approval would have been necessary. Secondly, the issue never reached the FISA court, as the executive branch determined it had the authority to conduct the search without a new court order. Third, most of the delay came not from the NSA’s doing paperwork required to determine if they needed a warrant, but from delays at the DOJ, which sat on the NSA’s request for seven hours. A timeline from Rep. Reyes tells the story:

At 10:00 a.m., key U.S. agencies met to discuss and develop various options for collecting additional intelligence relating to the kidnapping by accessing certain communications

At 10:52 a.m., the NSA notified the Department of Justice (DOJ) of its desire to collect some communications that require a FISA order. It was determined that some FISA coverage already existed.

At 12:53 p.m., the NSA General Counsel agreed that all of the requirements for an emergency FISA authorization had been met for the remaining collection of the communications inside the U.S.

Collection could have started immediately – the requirements of the statute were satisfied. As James Baker, head of the FISA office has testified to Congress, emergency authorization can take place in minutes and can be granted orally.

However, the NSA played it safe and waited for the Justice Department to give the go ahead. How long could that take?

At 5:30 p.m., [after several hours of internal discussion at DOJ] the OIPR attorney on duty attempted to reach the Solicitor General who was the Acting Attorney General while Attorney General Gonzales was addressing a United States Attorney’s Conference in Texas. However, the Solicitor General had left for the day and the decision was made to attempt to reach Attorney General in Texas.

The law allows four officials to grant authority to conduct emergency surveillance: the AG, the Acting AG, the Deputy AG, and the Assistant AG.

The AG was out of town. The Acting AG had left the building. The Deputy AG (Paul McNulty) had resigned the day before. As for the Assistant AG, Congress had authorized the Assistant Attorney General in charge of the National Security Division to grant authorizations – but the Justice Department had not yet altered its own internal regulations to allow him to do so. DOJ did not alter its internal guidelines until June 12 – a month later.

Finally, at 7:38, they reached Gonzales and began wiretapping.

It’s hard to see how altering FISA could have magically made the Bush administration competent. If the Justice Department lacks the internal resources or organization required to approve wiretapping activities in a timely manner, the solution is to hire more (or more competent) officials in the Justice department, not to do away with court oversight.